On January 9, the Jammu and Kashmir administration issued a circular directing the deputy commissioners of the Union territory to ensure that “all encroachments on state land” were removed “to the extent of 100% by 31st January, 2023”.
A week later, a resident of north Kashmir’s Kupwara district approached the High Court of Jammu and Kashmir and Ladakh, asking for the order to be struck down.
For decades, the petitioner had been in possession of a small piece of state land. In October 2013, under the provisions of the “Roshni Act”, he was given ownership rights to the plot after he paid a fee to the state. He went on to build a home on the plot of 14 marlas (0.087 acre).
But the January 9 circular, which applied to both common land meant for grazing (Kachharie) as well as Roshni land, would declare him an intruder and evict him from his home.
The Kupwara petitioner, who declined to be identified, is not alone. The circular has set in motion a sweeping anti-encroachment drive that has few precedents and that has triggered mass anxiety in the Union territory.
The primary reason for the panic is the scale of the demolition drive. According to newspaper reports, the government claims that 22 lakh kanals or 2.75 lakh acres of land (or around 1,112.8 sq km of land) have been illegally encroached upon in Jammu and Kashmir. That equals 2 lakh football fields put together, or almost five times the area of the city of Srinagar (spread over 227 sq km).
This is arguably the largest anti-encroachment exercise ever undertaken in Jammu and Kashmir. Residents have been protesting against the drive for weeks now. Critics say that the process lacks transparency and residents have not been given a chance to establish their claim on the contested land.
‘No objections in all these years’
On January 22, the high court issued a notice to the advocate general with a direction to assist the court and file a response to the Kupwara resident’s petition within four weeks.
“The petitioner is living on land whose ownership rights were given to him by the government after following a proper procedure under the law. That’s why he has approached the court,” said a lawyer familiar with the case, who requested anonymity. “Those who have gone to court cannot be evicted from the land until the matter is decided by the court.”
A revenue department official confirmed to Scroll that the department is unlikely to go ahead with eviction in this case, as the matter was sub-judice.
Others, however, are not as lucky.
Take the case of Ghulam from central Kashmir’s Ganderbal district.
Around 15 years ago, Ghulam bought a shop for Rs 1.5 lakh. While the owner of the shop promised to give him “revenue papers” after the transaction, he never did. Ghulam, who declined to give his second name, conceded that he later came to know that his shop sat on a patch of Kachharie land – owned by the state but meant for grazing and public use.
“In all these years, the revenue authorities have not objected to it,” said Ghulam.
But now they are.
Earlier this month, he was served a notice asking him to vacate his shop. He did not. “What am I supposed to do?” asked Ghulam, who is in his 50s. “This shop is my only source of livelihood. If they take it or demolish it, where will I go?”
Homes, shops, orchards
From homes to commercial complexes, almost every kind of structure was built on the allegedly encroached land. “Many have turned the encroached land into orchards and have put it to use for horticulture and agriculture,” said a revenue department official, speaking off the record.
Lieutenant Governor Manoj Sinha has said that only “influential people” who used their power and position to capture “state land” will be acted against and the “common man and poor people wouldn’t be touched by the administration”.
Officials have said the land is “being retrieved from the big vested interests only with the purpose of reverting it back for public use.” The retrieval process involves demolition of alleged illegal structures and boundary walls, after which signs are put up declaring that they are “state/Kachharie land”.
So far, the demolition drive has led to land being retrieved from leaders of Opposition parties like National Conference, Peoples Democratic Party and Congress – as well as three Bharatiya Janata Party leaders in Jammu. Bureaucrats, police officers and a separatist leader, too, have had to face eviction orders.
On the ground, however, officials have made little distinction between ordinary and influential people, say critics.
For example, on February 4, revenue authorities retrieved a strip of Kachharie land in Srinagar’s Padshahi Bagh after demolishing the corrugated-metal fence of a scrap godown. “The government said poor people will not be touched and those who have small plots of 10-15 marlas of land won’t be touched. But look what they have done to us,” said one of the co-owners of the scrap godown. “This is injustice.”
According to the affected co-owner, they were aware that the plot in their possession was grazing land. “We thought we are poor people earning our livelihood from a small patch of land. We thought we will not be touched,” he said.
Fearing a backlash, the ruling Bharatiya Janata Party leaders from Jammu and Kashmir have sought a “formal order” from the Union territory administration, saying that the “poor” will not be affected.
‘Lack of transparency’
That the government has not put out any official data on the ongoing exercise has added to the uncertainty.
While several news reports, quoting unnamed officials, cite 15 lakh kanals (1.87 lakh acres) as the total amount of land retrieved during the exercise, the government has not released any official data on the number of structures demolished or seized. Nor is there a figure for the number of trees the revenue authorities have felled or crops they have destroyed to clear the land.
Multiple calls and messages to commissioner secretary, revenue, Vijay Kumar Bidhuri, from Scroll went unanswered.
On February 2, a prominent body of traders and business houses in Kashmir underlined the lack of “transparency” in the ongoing anti-encroachment drive.
Local residents have accused the administration of not serving them any notices before the demolition of their property. Videos of people pleading with revenue officials are going viral every other day in the Union territory.
On February 4, a demolition drive on an automobile showroom in Jammu turned violent after local residents threw stones at revenue officials and personnel of Jammu and Kashmir Police, leaving three of them injured. Five people, allegedly involved in the violence, were later arrested by the police while four others were detained.
Roshni’s long journey
At the heart of this contestation over the status of land is the fate of the Jammu and Kashmir State Land (Vesting Ownership to the Occupants) Act, popularly known as Roshni Act.
Passed in 2001, it provided a mechanism to grant ownership rights to occupants of state land after they paid a fee decided by the government. The funds raised under the act was supposed to finance power projects in Jammu and Kashmir, earning it the moniker of Roshni Act. The state land vested to occupants under this act is referred to as Roshni land.
So, why is the status of that land under challenge?
In December 2018, Jammu and Kashmir governor Satya Pal Malik repealed the Roshni Act. According to the government of the time, the act had “not served” its purpose, and had been misused.
On October 9, 2020, a division bench of the High Court of Jammu and Kashmir and Ladakh declared the scrapped Roshni Act “completely unconstitutional, contrary to law and unsustainable.” Calling the entire process a “land scam”, the court also ordered a Central Bureau of Investigation probe into the transfer of ownership rights to beneficiaries.
Less than a month later, the Jammu and Kashmir government passed an order “declaring all actions taken under” the law “as void ab-initio.” It also directed the revenue department to “evict encroachers from such land and retrieve it within a period of six months.”
But there was another twist in this story. In December 2020, the government had a change of heart.
The Jammu and Kashmir government filed a review petition in the high court, seeking a modified order from the court under which only “rich and wealthy land grabbers” would be evicted from the state land. The court is yet to lay down the criteria to differentiate between “the poor” and “the influential”. This has added to the confusion in the ongoing anti-encroachment drive.
Under the Roshni Act, a total of 3.48 lakh kanals (43,525 acres) of land was regularised in Jammu and Kashmir, say official figures. Ninety per cent of the transfer of ownership took place in Jammu region, while only 10% of beneficiaries of the scheme were from the Muslim-majority Kashmir Valley.
Hindus are in a majority in Jammu region and form the support base of the Bharatiya Janata Party in the Union territory. Many believe the government’s review petition was influenced by the higher number of people in Jammu who stood to lose out once the law was cancelled.
‘Worse than Afghanistan’
Almost every top political leader of Jammu and Kashmir has spoken out against the anti-encroachment drive and called for relief to those affected.
“Bulldozers should be the last resort,” said Omar Abdullah, former Jammu and Kashmir chief minister and National Conference vice-president. “The government must issue proper notices to those who, according to it, have grabbed state land and give them at least six weeks’ time to prove their claim on land.”
PDP president and former chief minister, Mehbooba Mufti, held the central government responsible for making Kashmir “worse than Afghanistan.” Addressing a press conference in New Delhi on Monday, Mufti accused the Bharatiya Janata Party of “bulldozing” the constitution. “We are worse than Afghanistan in the way bulldozers are being used to demolish homes,” she said. On Wednesday, she was detained while protesting against the drive in Delhi.
Sajad Lone, whose party Peoples Conference is seen to be close to Bharatiya Janata Party, on Monday accused the government of humiliating the people of Jammu and Kashmir. “What is the objective of the government? Do they want to retrieve land or humiliate people? I think humiliation is more important for them,” he asked.
Last week, former Congress leader Ghulam Nabi Azad met Union home minister Amit Shah to seek assurances that small land-holders will not be harassed, a spokesman of Azad’s newly floated Democratic Azad Party said in a statement on February 2.
What did the courts say?
The government has claimed its drive is backed by the Supreme Court’s directions.
In 2011, the court had passed a landmark judgement directing every state government to formulate a policy to evict encroachers on common land. The same year, the Jammu and Kashmir state government framed a scheme on encroachments on common land. In subsequent years, the high court repeatedly directed the government to evict encroachers from common land.
However, at least 200 petitions – including one by the government itself – seeking a review of the high court judgment annulling Roshni Act, are pending before the court.
“The pending review petitions do not bar the government from acting against the alleged encroachers as the court has not stayed its own judgement or passed an explicit order asking the government not to touch the occupants of state land,” explained a lawyer in Kashmir, wishing to remain anonymous. “But the government’s drive is bad in propriety.”
In his petition to the high court, the Kupwara resident said the January 9 circular is “bereft of any legal sanction or authority and dictatorial in its scope and tenor.” If the circular is implemented upon, the petitioner said, it “would jeopardise the fundamental rights of the petitioner enshrined in Article 21 [protection of life and personal liberty] of the Constitution of India…”
Others, too, have sought the high court’s intervention. For now, they may have managed to put off government action.
In the past, both the Supreme court and High Court of Jammu and Kashmir and Ladakh had given some sort of relief to those Roshni beneficiaries who had approached it, seeking review of the high court judgement of October 2020. In January 2021, the Union territory administration informed the Supreme Court that no “coercive action” would be taken against them.
But it is unclear if the judiciary will come to the aid of those affected by the ongoing drive.
A group of residents, all beneficiaries of Roshni land, had knocked on the doors of the apex court after the January 9 circular, asking for it to intervene in their favour.
On January 20, nearly two weeks after the eviction orders, the Supreme Court refused to stay the circular. The court orally asked the Union territory administration not to demolish any homes built on Roshni land.
Then, the bulldozers started rolling.